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Wednesday, April 4, 2012

On Monday, the Supreme Court issued a 5-4 decision (.pdf download) in Florence v. Board of Chosen Freeholders of County of Burlington, holding that corrections officials can strip search an individual who has been arrested before admitting him or her to a jail’s general population, regardless of how minor the charge and whether or not the officials reasonably believe that the arrestee is concealing contraband.

While riding in his car with his wife and young son, Albert Florence was stopped by a state trooper in Burlington County, New Jersey. The trooper erroneously arrested Florence on a bench warrant issued for late payments of a fine, which Florence had paid before his arrest. He even carried official proof of payment in his glove compartment, but this did not protect him. At both the Burlington County Detention Facility and the Essex County Correction Facility, Florence was forced to undergo a thorough strip search with other detainees, even though New Jersey law requires reasonable suspicion of possession of contraband for a strip search when an individual is arrested for a minor offense.

Florence and others brought a class action suit against jail and county officials in the U.S. District Court for the District of New Jersey. The District Court granted summary judgment for Florence on the grounds that his Fourth Amendment right against unreasonable searches and seizures had been violated. The Court of Appeals for the Third Circuit reversed the District Court’s ruling, holding that the jails’ security interest in preventing smuggling of contraband outweighed the privacy interests of detainees.

The Supreme Court, in an opinion by Justice Kennedy, held that the strip search procedures in question – which involved Florence being ordered to “lift his genitals, turn around, and cough in a squatting position” – “struck a reasonable balance between inmate privacy and the needs of the institution.” The majority emphasized that corrections officials are given enormous latitude to determine legitimate security interests, if there is no evidence that they have “exaggerated their response.”

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote in dissent that no convincing reason had been presented why “in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further [] penal interests.”

Breyer argued convincingly that the majority’s categorical rule allowing officials to commit gross invasions of personal privacy by conducting strip searches without any reason to suspect the concealment of contraband is simply not justified by the empirical evidence. Notably, he cited an empirical study showing that out of 23,000 individuals strip searched before being admitted to a particular correctional facility, a mere five were discovered to have concealed contraband in their underwear or anal cavities, and in four of those instances, there would have been reasonable suspicion to conduct a search. Thus, there was “only one instance in 23,000 in which the strip search policy ‘arguably’ detected additional contraband.” Such results do not suggest that important penal interests are being served by such policies.

Indicating some discomfort with the breadth of the majority’s rule, Chief Justice Roberts and Justice Alito each wrote separate concurrences to emphasize its limitations. Roberts simply noted that there may be exceptions to the rule in the future, while Alito emphasized that the ruling is limited to visual inspections of arrestees who will be admitted to the jail’s general population.

Notwithstanding these “limitations,” the Supreme Court has issued a ruling of dramatic impact, under which any individual arrested for any reason – including driving with a noisy muffler or riding a bicycle without an audible bell -- and no matter how innocent he or she may be of the charges, may be ordered to strip naked and to expose his or her genitals for inspection by corrections officers.

1 comment:

This is yet another decision of the Roberts Court that should make all of us wonder whether this court has any sense of the way ordinary people in this country interpret the Constitution and American traditions. We may even wonder whether they don't care what ordinary people think. After all they are the Supreme Court with Supreme power and with appointments for life. But we all know the adage that power corrupts.

Clearly, after assuming their privilege of Judicial review in their decision, Marbury v Madison, the court is much more powerful than the Constitution envisioned. But we have accepted the fact of that privilege for two centuries and judicial review is unlikely to go away now.

But Constitutional amendments are not impossible when there is widespread support. I would propose we seriously discuss the merits of submitting each Justice to a vote of confidence by the people at the first non-presidential election after twelve years of service and every twelve years thereafter.

This proposal would, on average, put one third of the court up for a vote of confidence every four years and this would exert needed pressure on a the Court to take public sentiment seriously. It might even strengthen public interest in the courts.